{"id":"full_commission-H008920-2023-08-29","awcc_number":"H008920","decision_date":"2023-08-29","opinion_type":"full_commission","claimant_name":"John Kunkel","employer_name":"Leaffilter North LLC","title":"KUNKEL VS. LEAFFILTER NORTH LLC AWCC# H008920 AUGUST 29, 2023","outcome":"reversed","outcome_keywords":["reversed:1","vacated:1"],"injury_keywords":["ankle"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Kunkel_John_H008920_20230829.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Kunkel_John_H008920_20230829.pdf","text_length":11213,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H008920 \n \nJOHN KUNKEL, \nEMPLOYEE \n \nCLAIMANT \nLEAFFILTER NORTH LLC,  \nEMPLOYER \n \nRESPONDENT \nARCH INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED AUGUST 29, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE LEE J. MULDROW, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s order filed May \n17, 2023.  The administrative law judge found that the claimant “should be \ncompelled” to undergo a Functional Capacity Evaluation.  After reviewing \nthe entire record de novo, the Full Commission reverses and vacates the \nadministrative law judge’s opinion.     \nI.  HISTORY \n The parties stipulated that the claimant “sustained a compensable \ninjury to his left lower extremity” on November 2, 2020.  The parties \n\nKUNKEL - H008920  2\n  \n \n \nstipulated that the respondents “have accepted this claim as compensable, \nand paid both medical and some indemnity benefits.”  \n The record indicates that Dr. Gregory Ardoin examined the claimant \nat OrthoArkansas on November 14, 2022: \nLeft foot and ankle exam reveal intact skin.  Mild edema \nnoted.  There is no ecchymosis or erythema....He is able to \nperform single-leg heel raise bilaterally.  He has good range of \nmotion of the ankle and hindfoot.  He has some tenderness \nand swelling of the anterior ankle. \nAssessment/Plan \nImaging:  Three-view standing left ankle x-ray was ordered, \nobtained and interpreted findings include interval joint space \nof 1.8 mm with mild degenerative changes noted.   \nImpression:  Left ankle work-related injury with resulted pain \nand developing arthritis.   \nPlan:  At this point I think he is at MMI.  He will need to be \nseen once or twice a year.  At some point he may require an \nankle fusion or total ankle replacement.  He has arthritis in the \nankle.  I recommend anti-inflammatories.   \nHis work restrictions will include avoid uneven ground, no \nstooping or squatting and avoid ladder climbing.   \nPatient deserves impairment according to the Guides to the \nEvaluation of Permanent Impairment, fourth edition page 83 \ntable 62 for ankle joint space narrowing of 1.8 mm, 8% whole \nperson, 20% left lower extremity and 28% left foot.   \nFollow-up in 6 months.   \n \n Dr. Ardoin diagnosed “1.  Pain of left ankle joint” and “2.  Traumatic \narthropathy-ankle.”   \n Dr. Ardoin signed a Return to Work/School note on November 14, \n2022:  “Please excuse John for 11/14/2022.  John may return to \nwork/school on 11/14/2022.  Activity is restricted as follows:  no working on \n\nKUNKEL - H008920  3\n  \n \n \nuneven ground, stooping, ladder climbing, crawling.  No pushing, pulling, or \nlifting more than 15 pounds.”   \nOn April 12, 2023, the respondents e-mailed a MOTION TO \nCOMPEL FUNCTIONAL CAPACITY EVALUATION.  The MOTION stated \nin part: \n3.  The claim was initially accepted and both medical and TTD \nbenefits were paid.  Orthopedic surgeon, Dr. Phillip Smith, \ntreated claimant between November 2020 and March 2, 2021, \nat which time he ordered a functional capacity evaluation. \n4.  A functional capacity evaluation was done on March 12, \n2021, and was determined to be unreliable.  Thereupon, on \nApril 6, 2021, Dr. Smith released the patient as having \nreached MMI.   \n5.  Pursuant to a change of physician request claimant’s care \nwas assumed by Dr. Gregory Ardoin who ultimately performed \narthroscopic surgery on February 1, 2022.   \n6.  Continuing care included cortisone injections followed with \nDr. Ardoin releasing the patient at MMI on November 14, \n2022.  Dr. Ardoin outlined activity restrictions. \n7.  Claimant is requesting benefits under §505.   \n8.  Respondents have repeatedly requested that claimant \nmake himself available for a functional capacity evaluation to \nobjectively assess and validate recommended physical \nrestrictions.   \n9.  Claimant has adamantly refused respondents’ request for \na post-surgery functional capacity evaluation.   \n \n The respondents moved “for an order compelling a functional \ncapacity evaluation at respondents’ expense.”   \n The claimant responded on April 14, 2023 and stated in part: \n2.  Respondents have failed to cite any rule, case or other law \nin support of their Motion. \n3.  Respondents’ Motion is not supported by facts or law. \n\nKUNKEL - H008920  4\n  \n \n \n4.  The Requested Functional Capacity Evaluation has not \nbeen recommended by the Claimant’s authorized treating \nphysician, Dr. Troy Ardoin.... \n6.  The Respondents are requesting a functional capacity \nevaluation.  Again, Respondents have cited no legal or factual \nbasis for same.  The undersigned is not aware of any specific \nstatutory authority or rule allowing for the Respondents to \nobtain such an evaluation.  Ark. Code Ann. §11-9-511 allows \nfor an examination by a physician but only if it is reasonable \nand necessary.  Respondents are not requesting an \nIndependent Medical Examination.   \n7.  There has been no request for an FCE by the Claimant’s \nauthorized treating physician.... \n \n The claimant requested “that the Respondents’ Motion to Compel \nFunctional Capacity Evaluation be denied and for any and all other relief to \nwhich he may be entitled, including attorney’s fees.”      \n A pre-hearing order was filed on April 18, 2023.  According to the \npre-hearing order, the parties agreed to litigate the following issues: \n1.  Whether the claimant must submit himself for and undergo \na Functional Capacity Evaluation (FCE) at the \nrespondents’ request for the purposes of determining his \nphysical limitations and restrictions, if any; the extent of his \npermanent anatomical impairment, if any, and any and all \nother issue(s) relevant to this claim which fall within the \nexpertise of the FCE examiner/evaluator. \n2.  The parties specifically reserve any and all other issues for \nfuture litigation and/or determination.   \n \nThe case was submitted on the record.  An administrative law judge \nfiled an OPINION AND ORDER GRANTING RESPONDENTS’ MOTION \nTO COMPEL FUNCTIONAL CAPACITY EVALUATION (FCE) FILED MAY \n17, 2023.  The administrative law judge found: \n\nKUNKEL - H008920  5\n  \n \n \n1. The parties’ stipulations contained in the prehearing order \nfiled April 18, 2023, hereby are accepted as facts. \n2. The respondents’ motion requesting the claimant should \nbe compelled to submit himself for a current FCE at the \nrespondents’ expense should be and hereby is \nGRANTED. \n3. The claimant’s and respondents’ attorneys shall confer \nand cooperate in scheduling and ensuring that the \nclaimant attends an FCE with Mr. Rick Byrd, of Functional \nTesting Centers, Inc., at their earliest possible \nconvenience.   \n \nThe claimant appeals to the Full Commission.  \nII.  ADJUDICATION \n The parties stipulated that the claimant sustained a compensable \ninjury to his left lower extremity on November 2, 2020.  The parties \nstipulated that the respondents provided medical treatment and some \nindemnity benefits.  Dr. Ardoin opined on November 14, 2022 that the \nclaimant had reached maximum medical improvement.  Dr. Ardoin assigned \nan 8% whole-person  impairment rating and released the claimant to \nrestricted work.   \n On April 12, 2023, the respondents e-mailed a motion to “compel” \nthe claimant to participate in a Functional Capacity Evaluation.  The \nrespondents stated that they “have repeatedly requested that claimant \nmake himself available for a functional capacity evaluation to objectively \nassess and validate recommended physical restrictions.”  However, the Full \nCommission notes that the treating physician of record, Dr. Ardoin, has not \n\nKUNKEL - H008920  6\n  \n \n \nrecommended that the claimant undergo a Functional Capacity Evaluation.  \nWe also note that there is limited medical evidence before the Commission \nand there has been no testimony of record.  In addition, there has not been \nan adjudication of record, award, or denial of benefits by an administrative \nlaw judge or the Full Commission.  There are no pleadings from either party \nother than the two opposing motions.  Nor has the claimant filed a request \nfor additional medical treatment or indemnity benefits.  Neither case cited \nby the administrative law judge, North Hills Surgery Center v. Otis, 2021 \nArk. App. 468, 638 S.W.3d 323, and Eldridge v. Pace Industries, LLC, 2021 \nArk. App. 245, 625 S.W.3d 734, can be interpreted as appellate authority \nsupporting a finding that the claimant in the present matter should be \ncoerced into undergoing a Functional Capacity Evaluation. \n Based on the current record before us, the Full Commission reverses \nand vacates the administrative law judge’s order compelling the claimant to \nparticipate in a Functional Capacity Evaluation at Functional Testing \nCenters, Inc.   \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n\nKUNKEL - H008920  7\n  \n \n \nDISSENTING OPINION \nI must respectfully dissent from the Majority’s determination that the \nclaimant should not be compelled to undergo a Functional Capacity \nEvaluation. \nThe Act provides and “[a]n injured employee claiming to be entitled \nto compensation shall submit to such physical examination and treatment \nby another qualified physician, designated or approved by the Workers’ \nCompensation Commission, as the commission may require from time to \ntime if reasonable and necessary.”  Ark. Code Ann. §11-9-511(a).  “Such \nphysician as the employee, employer or insurance carrier may select and \npay for may participate in the examination if the employee, employer, or \ninsurance carrier so requests.”  Ark. Code Ann. §11-9-511(c).  It is well \nsettled under our rules that a Functional Capacity Exam (FCE) constitutes \n“treatment” under the Act.  Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 \nS.W.2d 790 (1966); Sanders v. Backus Paint & Body Shop, 2006 Ark. App. \nLEXIS 783 (2006).  This is especially relevant for questions of “additional \ntesting, physical therapy, work hardening, and/or a change to the \nimpairment rating.”  S. Tel. Const. Co. v Harris, No. CA06-921, 2007 Ark. \nApp. LEXIS 228 (2007). \nIn the present case, the respondent has made it clear that its \npurpose for compelling an FCE is to assist the Commission in determining \n\nKUNKEL - H008920  8\n  \n \n \nthe relevancy of vocational rehabilitation and the full extent of the claimant’s \nimpairment.  These purposes are strictly within the purview of the \nCommission, and the Commission, therefore, has the authority to direct the \nclaimant to submit to an FCE at the respondents’ expense.  I, therefore, \nagree with the ALJ’s findings that the claimant should be compelled to \nundergo a Functional Capacity Evaluation.  \nFor the reasons stated above, I respectfully dissent.     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H008920 JOHN KUNKEL, EMPLOYEE CLAIMANT LEAFFILTER NORTH LLC, EMPLOYER RESPONDENT ARCH INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 29, 2023","fetched_at":"2026-05-19T22:29:46.210Z","links":{"html":"/opinions/full_commission-H008920-2023-08-29","pdf":"https://labor.arkansas.gov/wp-content/uploads/Kunkel_John_H008920_20230829.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}